Solomon v. Mohideen Palhumma
1962Present: Sansoni, J., and Sinnetamby, J.
C. D. SOLOMON, Appellant, and C. MOHIDEENPATHUMMA (Wife of M. I. Aboobucker), et al., Respondents
S. C. 369/60—D. C. Colombo, 44047jM
Landlord and tenant—Sub-tenancy—Rent due from sub-tenant—Sub-tenant's rightto pay it to head landlord.
Appeal—Section 772 of Civil Procedure Code—Meaning of expression “ support thedecree on any of the grounds decided against him in the Court below ”.
Where a landlord (A) lets a house to a tenant (B) who subsequently sub-lotsit to C, C cannot plead that he has discharged his obligation to pay B tho rentduo to him by paying such rent to A, unless ho proves that such paymentswore made for tho benefit of B or to prevent his own goods being distrainedby A.
Without filing an objection in terms of soction 772 of tho Civil ProcedureCode a party rospondont to an appoal is not ontitlod to attack any findings oftho trial Court that are adverso to him. Tho respondent must accept thecorrectness of tho decision which has boon made against him and on that basis,if tho findings help him, try to support tho docroo.
-A-PPEAL from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.C., with C. D. S. Siriwardene and S. S. Bas-nayake, for the 1st defendant-appellant.
C. Thiagalingam, Q.C., with M. L. de Silva, for the respondents.
SINNETAMBY, J.—Solomon v. Mohidecn Pathumma
April 12, 1962. Sinnetamby, J.—
The plaintiff instituted this action against the first defendant allegingthat the first defendant was her tenant and that he had failed to pay-rents from June, 1956. She also alleged that she gave due notice to the1st defendant to quit and deliver possession of the premises at the end ofMarch, 1958. She claimed a sum of Rs. 6,195 as arrears of rent from1st July, 1956 to 31st March, 1958, and also claimed damages thereafterfrom 1st April, 195S, till she was restored to possession at the same rateas the rent. – She also asked for ejectment of the two defendants, the2nd defendant being a sub-tenant of the 1st defendant. The first defen-dant in his answer denied any contract of tenancy between himself and theplaintiff and alleged that ho was a tenant under tho owners of the propertynamely Mrs. F. V. de Silva and Jill's. Sumitra Aratchi. It was not deniedthat the two ladies were the owners of the property but plaintiff’s caseis that she had taken the premises on rent from them and then rentedit to the 1st defendant. The 1st defendant in his answer stated that hehad taken the premises on rent from the owners and had paid rents tothem. For the sake of convenience I shall hereafter refer to the ownersas the head landlords, the plaintiff as landlord, 1st.defendant as thetenant and the 2nd defendant as the sub-tenant.
On a perusal of the answer it is quite evident that the 1st defendantbased his defence entirely on the averment that he was not liable to paythe plaintiff inasmuch as there was no contract of tenancy betweenthem. He did no doubt say that he paid rents to the head landlord,namely the two ladies, but there was no specific plea based upon it.When the time came for issues to be framed, Mr. Kanagarajah for theplaintiff suggested the following :—
Did the plaintiff let premises No. 179, 4th Cross Street, Pettah,
on a monthly rental of Rs. 295 to the 1st defendant on 28.10.1955 ?
Has this tenancy been terminated by a notice expiring on 31.3.1958 ?
(Notice to quit given by the plaintiff to the 1st defendant isadmitted.)
Is the 1st defendant in arrears of rent since 1.7.1956 for more
than one month after it has become due ?
If the above issues arc answered in the affirmative, is the plaintiff
entitled to eject the 1st defendant and those holding underthem ?
What amount is due on account of arrears of rent and damages
from the 1st defendant to the plaintiff.
Mr. Advocate Somasunderam who appeared for the 1st defendant whileaccepting these issues suggested only the following issues :—
C. Is the 1st defendant in occupation of the premises in question asa tenant under Mrs. F. V. de Silva and Mrs. Sumitra Aratchias from October, 1955 ?
7. If so, can the plaintiff maintain this action ?
All the issues framed were accepted.
SINNETAMBY, J.—Solomon v. Mohideen Pathumma
It was thus clear on a consideration of the issues that the 1st defendantat no time contended that he had paid any rents to the head landlordsfor and on behalf of his landlord and thereby discharged his obligationsto pay rents to her. On the contrary, his defence was that he was atenant of the owners and was not at all liable to pay rent to the plaintiff.On the main issues the learned trial judge came to the conclusion thatthe 1st defendant was a tenant of the plaintiff. He, nevertheless, heldthat the 1st defendant was not in arrears of reiit for more than one monthafter it had become due and that, therefore, the plaintiff was not entitledto maintain his action. He also held that the 1st defendant had bypayment to the head landlords discharged his obligations to pay rentsto the plaintiff and that on issue 5 no sum of money was due as rent tothe plaintiff for the period 1st July, 1956, up to 31st March, 1958, buthe held that the 1st defendant had not paid for the month of April, 1958,and on that ground had been in arrears of rent for more than one monthafter it had become due. He accordingly entered judgment in ejectmentand ordered the defendant to pay the plaintiff damages from 1st April,
till the plaintiff was restored to possession.
Against this judgment the plaintiff did not appeal. He did not contestthe validity of the Judge’s findings that the 1st defendant had dischargedhis obligations to pay the plaintiff by direct payment to the plaintiff’shead landlord at the rate of Rs. 295 per mensem for the period 1st July,
to 31st March, 1958. The 1st defendant, however, preferred thepresent appeal against the learned Judge’s findings. The plaintiff whoreceived the usual notice in regard to the appeal did not in terms of section772 “ take any objection to the decree which he could have taken by wayof appeal ” in order to reverse the learned Judge’s findings on issues 3 and5. – Counsel appearing for her, thus, was compelled to accept the Judge’sfindings that no rent was due to her in respect of the period 1st July, 1956,to 31st March, 1958.
The first question that arises for consideration is whether the defendantcan be said upon the learned Judge’s findings to have been in arrears ofrent within the meaning of the Rent Restriction Act. Plaintiff’s conten-tion was that she gave notice to the 1st defendant because he was inarrears of rent for more than one month after it had become due. Thenotice was given at the end of February to quit and deliver possession on31st March. Indeed, the plaintiff could not have instituted this actionfor ejectment if the 1st defendant had not been in arrears of rent for morethan one month after it had become due in respect of a period prior to1st March, 1958. The learned Judge, however, having regard to thegeneral terms in which issue 3 was framed, took the view that it was opento him to hold that rent had not been paid for the month of April, 1958;but, in my opinion, he was not entitled to do so for that was certainly notthe plaintiff’s case. The plaintiff’s case was that arrears of rent was inrespect of a period prior to the giving of the notice. That is the onlyinference one could draw from a consideration of the plaint, and the.ssues must ordinarily be referable to the plaint unless it is obvious that
SINNETAMBY, J.—Solomon v. Mohideen Palhumma
something else was intended. If the 1st defendant was not in arrears ofrent for the period stated by the plaintiff, his action must necessarilyfail.
The learned trial Judge on his own and without any argument beingaddressed to him also took the view that the tenants had paid the headlandlord a sum of money wliich was sufficient to cover the rents for the-period July 1956 to April -1958 and that these payments having beenmade for the benefit of the landlord should be set off against the rent. :In coming to this conclusion he relied on a principle of Roman-Dutch Jlaw referred to by Wille in his book “ Landlord and Tenant ” in the <•following terms :—…,v
“ The tenant has the actio locati against his sub-tenant for rent dueunder the sub-lease. Unless the tenant had paid to the landlord-himself what he owes to the head landlord in which case the sub-tenantis discharged from liability to the tenant.”
Por this proposition, Wille has referred to Voet 19.2.21 and 46.3.7.Wille’s statement of law in that particular paragraph is not quite completefor, according to Wille himself, the payment by a sub-tenant to a landlordwould discharge his liability for payment of rent to his own landlord ifonly such payment was for the purpose of preventing his own goods frombeing seized under the landlord’s tacit hypothec. At page 178 of thesame edition, Wille puts it in this way :—
“ Privity of contract is not created by the landlord accepting rentfrom a sub-tenant, even if he does so for a substantial period of time,since that is not sufficient to constitute a delegatio or assignment, fora sub-tenant is entitled to pay to the landlord rents due to him by thetenant either to free his goods (the' sub-tenant’s) from the landlord’stacit hypothec or acting as negotioriim gestor for the tenant .”
Voet makes it clear that the payment to operate as a discharge of the
debt due to the landlord must be for the benefit of the landlord. In Book
46 Title 3 Section 7 on which Will© relies for his statement of the law,this is what Voet says (Gane’s translation) :—
“ Although payment to my creditor’s creditor will not be validwithout my creditor’s consent except in so far as my actions on hisbehalf have been for his benefit though unknown to him .”
It will thus be seen that before the sub-tenant can plead that he hasdischarged his obligation to pay his landlord the rent due to him bypaying such rent to the head landlord, he must also prove that suchpayments were made for the benefit of the landlord or to prevent his owngoods being distrained by the head landlord. These are questions offact involving evidence and must be covered by express issues. It wasnever the 1st defendant’s case that he was a tenant of the plaintiff anddischarged his obligations by payment of rents to the head landlord. On
SINNETAMBY, J.—Solomon v. Mohideen Paihumma
the contrary he repudiated his contract of tenancy with the 1st defendantand it was not open to the judge on his own to have thought of thisdefence which neither party contemplated in his pleadings or in his issues.
In appeal before us it was not suggested that the sub-tenant can paythe head landlord unless such payment was made for the benefit of hisown landlord. Whether that be the true legal position or not, specificissues should have, in my opinion, been framed; otherwise, it would havecaused prejudice to the parties, Indeed, the learned Judge at one stagein rejecting the evidence of the plaintiff states that she did not produceany receipt in support of her statements that she had paid rents duefrom her to the head landlords. It was not necessary for her to producesuch receipts. She said she had them with her and ordinarily it wouldhave been totally irrelevant to produce them as the question of whethershe was or was not in arrears in regard to rent payable by her to thehead landlords was not put in issue. Nevertheless, there is some evidencegiven by her to the effect that she had made payments to the head landlordsand that if an accounting is taken there would be monies due to herfrom them. One of the head landlords namely Mrs. F. V. de Silva whenquestioned as to whether she had received Rs. 6,000 as an advance fromthe plaintiff’s husband who held her power of attorney, at first said shecould not remember but when a receipt bearing her signature was producedand shown to her, she acknowledged her signature. She had also writtena letter P 2 to the plaintiff admitting having taken Rs. 6,000 in advance.She further stated that she remembered having received Rs. 1,000 orRs. 1,500 as advance against rent due to her. She was questioned inregard to these matters solely for the purpose of showing that the 1stdefendant was not her tenant and that it was the plaintiff who was hertenant. All these matters would have been properly gone into if properissues in respect of them had been framed.
In my opinion, the learned Judge has totally misdirected himself inembarking on these lines of thought and in deciding the case on matterswhich were not put in issue. The question he had to determine wasfirst whether the 1st defendant was a tenant of the plaintiff and secondlywhether he was in arrears of rent prior to April, 1958, for more than onemonth after it had become due. These matters have not beensatisfactorily dealt with.
It was contended on behalf of the appellant that having regard toprovisions of section 772 of the Civil Procedure Code it was not open tothe plaintiff-respondent to question the validity of the Judge’s findingsthat the 1st defendant was not in arrears of rent for the period ended1st April, 1958‘. In as much as there has been no objection filed to theabove decree as provided for in the relevant sections, it is perfectlycorrect that the respondent is not entitled, in appeal, to obtain a variationof the decree in regard to the rents payable to him for that period, butit was contended on his behalf that even without filing an objection hecould in terms of section 772 support “ the decree on any of the groundsdecided against him in the court below ”. The meaning of the egression
Nadarasa v. Navamany
* ‘support the decree on any of the grounds decided against him in thecourt below ” contained in section 772 (1) docs not appear to have beeninterpreted in any of the decisions of our courts, but it was contendedon behalf of the respondent that he could attack so much of the findingsas are adverse to him for the purpose of his argument, so long as ho doesnot ask for the judgment and decree of the lower court to be in any wayaltered. I do not agree. The meaning of the expression appears to meto be that the respondent must accept the correctness of the decisionwhich has been made against him and on that basis, if the findings helphim, try to support the decree. This appears to be the view taken by theHigh Courts of Calcutta, Madras, Lahore and Rangoon in respect ofsimilar, provisions contained in the Order No. 41 Rule No. 22 of theIndian Civil Procedure Code, vide Chittaley 1908 ed. page 2674.
From what has been stated above, it is manifest that the learned trialJudge has decided this case on a consideration of matters which were notin the contemplation of the parties and in respect of which they did nottender evidence.
In the circumstances, the judgment of the learned trial Judge cannotbe allowed to stand and I think that the proper course for us to follow isto set it aside and remit the case for a fresh trial upon proper issues. Ifthe 1st defendant desires to do so, he may adopt the view of the learnedDistrict Judge that he made payment on behalf of the plaintiff to thehead landlord. Neither party will be entitled to the costs of this appealbut the costs of the court below will he costs in the cause.
Sansoxt, J.—I agree.
Case remitted for a fresh trial.